[This is a guest post by Peter Bartlett and Amanda Jolson (@amanda_jolson) of Minter Ellison (@MintersTMT) on Australia's shield laws. Shield laws are designed to protect the confidentiality of the journalist-source relationship. However there has been a sustained attempt to erode those protections that guard the journalist-source relationship. Peter Bartlett and Amanda Jolson Minter Ellison explain.]
The Media Entertainment and Arts Alliance has called for uniform national shield laws. Christopher Warren, the Federal Secretary of the Alliance correctly referred to Australia's shield laws as "patchy and disparate."
According to Chris "it is appalling journalists are served with a subpoena that essentially would require them to breach their ethical obligation."
The comments followed this week's decision by Justice Janine Pritchard in the Supreme Court allowing us to seek special legal costs from Hancock Prospecting (Gina Rinehart). Hancock Prospecting had sought disclosure of sources from Fairfax's award winning journalist, Adele Ferguson.
Over recent years a number of Australian jurisdictions have adopted 'shield laws' that provide greater protection to the confidentiality of a source, and make it harder to compel journalists to reveal their sources to a court. These laws do not bestow an absolute privilege, but rather discretion available to the court to excuse the journalist from identifying an informant.
Where have shield laws been enacted?
The federal government and the state and territory governments of New South Wales (NSW), Victoria, Western Australia (WA), the Australian Capital Territory (ACT), have introduced shield laws through amendments to their respective Evidence Acts. While these laws are not uniform, they represent a significant increase in Australia's protection of freedom of speech and a journalist's right to protect the confidentiality of their sources.
Queensland, South Australia and the Northern Territory do not currently have specific laws to protect the relationship between journalists and their sources.
South Australia has introduced a Bill which would allow a professional journalist to avoid criminal or civil liability for failing to answer questions or produce material that may disclose the identity of an confidential informant. However an exception will be if the Court is satisfied it is in the public interest or in the interests of justice to make an order for disclosure or if the benefit of disclosing the identity of the informant or answering questions or providing relevant information outweighs the prejudicial effect that the disclosure would have on the informant or the journalist.
Although Queensland has expressed a preference for the adoption of uniform shield laws, journalists can currently rely on protection of their sources where a 'public interest disclosure' has been made – that is, where disclosure is made to a journalist after referral to an entity that had decided not to investigate the matter further.
Tasmania has not enacted journalism-specific shield laws, but does have a general 'professional confidential relationship privilege' which could operate as a shield law for journalists.
In addition, 'public interest disclosure' laws can protect the identities of whistleblowers in certain circumstances, such as by public officials, officers, employees or contractors, or entities that are performing a public function on behalf of the state, a public body or a public officer.
Who can use these laws?
In all cases, the laws can be invoked not only by the journalist but also his or her employer.
The Commonwealth and ACT Acts, and South Australian Bill are notable for their broad definition of a 'journalist'. The definitions cover anyone who 'is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium'. The original proposed definition of someone 'employed' in the publication of news was specifically changed to capture those who work unpaid or at an amateur level. As the definition of journalist does not make reference to the 'profession or occupation of journalism' (unlike the NSW provisions which are narrower), it would seem to cover journalists in mainstream media, citizen journalists, bloggers and independent media organisations. A 'news medium' will include 'any medium for the dissemination to the public or a section of the public of news and observations on news', which seemingly includes a blog or perhaps even publication that only reaches a small audience.
The NSW, Victorian and WA laws define journalists more narrowly, as someone 'engaged in the profession or occupation of journalism'. An amateur blogger would not be included. The NSW and WA jurisdictions are somewhat broadened by a 'professional confidential relationship privilege' law that allows the court to make similar orders in respect of those who are not considered journalists.
The Victorian amendments cover the professional publication of comments, opinions, and analysis, and so are arguably wider than other state laws covering 'news and observations on the news'.
When may shield laws be enforced?
Shield laws do not automatically protect all sources. In all jurisdictions, the journalist must have promised anonymity to the source to enliven the laws.
All jurisdictions have an exception that the court can decide against an application if it finds that the public interest in doing so outweighs:
- Any likely adverse effect on the informant or any other person; and
- The public interest in the communication of facts and opinion to the public by the news media and, accordingly also, the ability of the news media to access sources of facts.
Therefore the Acts do not provide comprehensive protection for journalists as they rely upon the discretion of the court.
The source must provide the information to the journalist 'in the normal course of [the journalist's] work', with the expectation that the information may be published in a news medium. This means if the journalist has received a tip in a private capacity, such as speaking with family or friends, or in the course of a second job, the source will not be protected.
The Victorian laws will also not apply in certain proceedings including those conducted by the Independent Broad-Based Anti-Corruption Commission or the Office of Police Integrity.
The shielding presumption in WA can be overruled not only by a court, but also by a 'person acting judicially' if it is considered that the public interest outweighs the protection to the individual. It is important to note that 'a person acting judicially' will not include a member of parliament or a parliamentary committee member who has authority to hear, receive and examine evidence. In Hancock Prospecting Pty Ltd v Hancock  WASC 290, which is referred to in more detail below, the Court held that a 'person acting judicially' includes an arbitrator.
WA was one of the first jurisdictions to have its shield laws tested in court in the Hancock Prospecting case. Justice Janine Pritchard set aside subpoenas sought by Hancock Prospecting against West Australian Newspapers, ruling them oppressive and an abuse of process in contravention of the shield laws. Though the WA laws do not specifically mention subpoenas for production of documents, her Honour found that failure to use the shield laws in this case would make them nonsensical.
In addition to the protection afforded by statue, journalists have professional responsibilities consistent with the precepts of their profession.
Most journalists are members of the Media Entertainment and Arts Alliance (MEAA). Clause 3 of the MEAA Journalist Code of Ethics states that where confidences are accepted by an MEAA member, they must be respected in all circumstances. The Code also provides that a journalist should:
"Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances."The significance of this principle was acknowledged by Justice Harper in the Victorian Supreme Court of Appeal, who held that 'one mechanism, appropriate in some but not all circumstances, by which journalists elicit the truth is to promise anonymity to those from whom they source their information. This too serves the public interest, an interest advanced not only by the code of ethics of The Age but also by that of the MEAA (of which the applicants are members)'.
Despite the introduction of the new legislation, journalists' sources are under unprecedented challenge in our courts.
Hancock Prospecting / Steve Pennells and Western Australian Newspapers
Earlier this year, Gina Rinehart's company Hancock Prospecting issued subpoenas against journalist Steve Pennells and his employer Western Australian Newspapers in the Western Australian Supreme Court for the production of documents in an ongoing arbitration, a claim requiring the disclosure of confidential sources. It is one of the first opportunities a court has had to consider the new protections. Justice Janine Pritchard delivered her judgment on 6 August 2013. Justice Pritchard found the protection in section 20 of the WA Evidence Act applied so that a journalist could not be compelled to give evidence identifying confidential sources, accepting that an order of disclosure would ‘constitute a breach of a fundamental ethical obligation’. Despite this 'ethical obligation', Justice Pritchard found the action would have failed but for the enactment of the shield law legislation. '[T]he so-called newspaper 'rule' is not, in fact, a rule at all', she held, stating that the position at common law remained that 'the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice'.
Hancock Prospecting / Adele Ferguson and Fairfax Media
Hancock Prospecting also sought disclosure of sources from Adele Ferguson, an award winning journalist employed by Fairfax Media. The application was withdrawn following the Pritchard J decision in the Pennells and Western Australia Newspapers case.
Helen Liu / Nick McKenzie, Richard Baker and Philip Dorling
Three respected investigative reporters employed by Fairfax Media, Nick McKenzie, Richard Baker and Philip Dorling, are facing two applications by businesswoman Helen Liu to disclose documents that would reveal information about their confidential sources for a series of stories published in The Age on the relationship between the Chinese-Australian businesswoman and federal Labor MP Joel Fitzgibbon. NSW Supreme Court judge Lucy McCallum ordered the journalists to disclose their sources and held that a journalist's pledge to keep a confidential source 'is not a right or an end in itself' and could be overridden 'in the interests of justice'. This decision was upheld on appeal to the Court of Appeal. The High Court refused the journalists' application for special leave to appeal from the Court of Appeal's decision. It is back in court on 11 April 2014. The NSW Shield laws were not in operation at the time of publication.
Note Printing and Securency / Nick McKenzie and Richard Baker and Fairfax Media
The Magistrates' Court of Victoria re-issued two witness summonses in December 2012 to Nick McKenzie and Richard Baker which required them to give evidence and produce documents in relation to their sources for an article they published. The evidence was sought in a committal proceeding for charges against former executives of Reserve Bank subsidiaries, Note Printing Australia Ltd and Securency International Pty Ltd. Although the Commonwealth laws were in place, the Victorian shield laws were yet to take affect. The journalists' application to set the summonses aside was refused and they sought judicial review of the Magistrate's decision that would have compelled them to comply with the summonses. The Supreme Court refused their application. This decision was appealed to the Court of Appeal, who set aside the witness summons. Justice Harper noted in the judgment that 'investigative journalists have a legitimate interest in uncovering the truth about a story such as this; and they serve an important public interest in having that truth revealed'.
Nathan Tinkler / Paddy Manning
Paddy Manning, a then journalist with The Sydney Morning Herald newspaper was subject to a subpoena requiring him to hand over confidential information about a source relating to the business affairs of mining entrepreneur Nathan Tinkler. Mr Manning had appropriately sent an email to Mr Tinkler's PR team asking for comment prior to publication of a story about Mr Tinkler's liquidity and commercial dealings. A super-injunction was successfully imposed on the publication of information received from the source. An agreement between Mr Tinkler and Fairfax Media continues to suppress limited details of Manning's report but the super-injunction and the subpoena were lifted.
Sunland / Ben Butler and Fairfax Media
Property developer Sunland threatened Fairfax Media and business reporter Ben Butler with legal action if they did not 'immediately reveal' the source of an article about a controversial property deal in Dubai. The court issued an injunction preventing Fairfax Media reporting further details of a confidential deed. An out of court settlement was reached for non-publication of the deed.
Glenn Crisp / Adele Ferguson
Chartered accountancy firm RSM Bird Cameron issued proceedings for fraud and misappropriation of funds in the County Court of Victoria against Glenn Crisp, a former partner and an insolvency practitioner, liquidator and chartered accountant. Adele Ferguson obtained copies of the Writ and Statement of Claim. Crisp made an urgent inter parties application to the Supreme Court of Victoria for an injunction restraining The Age newspaper, Fairfax Media and Adele Ferguson from publishing any allegations defamatory of Crisp in the County Court documents. Crisp's application was eventually unsuccessful. However, as a result, in the course of the ongoing proceedings between RSM Bird Cameron and Crisp, Fairfax Media was served with a summons seeking a permanent injunction and disclosure by Ms Ferguson of her source of the court documents. Crisp had requested that each partner of RSM Bird Cameron swear under oath that they were not the source. The primary action settled and the subpoena has lapsed.
Australian Federal Police / Royce Millar, Nick McKenzie and Ben Schneiders
Royce Millar, Nick McKenzie and Ben Schneiders were charged with the offence of gaining unauthorised access to restricted information held on an ALP database. In an attempt to ascertain who provided access to the database, the Australian Federal Police raided The Age's offices and the home of one of the journalists. Whilst the journalists refused to disclose their source, the AFP charged a fourth person who they believe had provided the username and password to the journalists which enabled them to access the information on the database. All four accused escaped conviction and were placed on a court diversion program in the Magistrates' Court of Victoria.
The Australian Sports Anti-Doping Authority wrote to The Age newspaper requesting the source of a leaked confidential report on its doping investigation at the Essendon Football Club.
We acted for the reporters in all of these claims save for that against Steve Pennells. These applications were made against some of the best reporters in Australia, reporters who were just doing their job and doing it well.
These cases highlight the need for shield laws and uniformity. Despite some wins for the media, we are still left questioning why is it that the NSW law specifically covers subpoenas and the W.A. law does not, and why the definitions of "journalist" differs?
Peter Bartlett on is one of Australia’s leading media lawyers and is Partner in Minter Ellison, Melbourne Australia. He has acted for a wide range of Australian and international media and communications companies including Fairfax Media, Fairfax Digital and The Age Company Ltd, Simon & Schuster, Bloomberg, the Nine Network, SBS and the Australian Broadcasting Corporation (the ABC). Amanda Jolson works in Minter Ellison’s busy media and defamation team.